Examination of Witness (Questions 142-160)
29 JUNE 2004
ROY MORGAN
In the absence of the Chairman, Mr Soley was called
to the Chair
Q142 Mr Soley: Mr Morgan, your submission
indicates that the rising cost of the Criminal Defence Service
is primarily due to external factors like the Government' policy
of "narrowing the justice gap" in bringing more people
to justice. Would you accept that savings could be made through
changes to the Criminal Defence Service itself?
Mr Morgan: I think there are a
number of factors that have caused increasing costs—and
you have heard lots of them already: the greater number of suspects
before the courts increased sentencing guidelines and so on—but
Government initiatives have created an explosion in many areas,
and ASBOs and so on is just one example of that. Can savings be
made? I think they can be made but I think we need to look in
a different direction. From the evidence I have seen given to
this Committee already, our paper is one of the few papers that
has touched upon the numbers of legal aid orders, representation
order that have been granted. If you look at the reason for that,
it might show where savings can be made. One of the reasons is
the culture that has existed for some years in the past of overcharging
by the police, overcharging leading to cases ending up in the
crown court when they perhaps should not have ended up in the
crown court if they had been correctly charged. You are right,
in the crown court the charge is reduced, the case is dealt with,
but that reduced charge could have been dealt with in the magistrates
order at much less cost and at a much earlier stage. There have
been some improvements. The use of CPS lawyers in the police station
has brought about more accurate charging and less overcharging,
but from the early findings—and I can only refer to the
info I have been given by the Crown Prosecution Service—the
culture still exists whereby the police are referring only a small
percentage of cases within the police station to the CPS lawyer.
Q143 Mr Soley: Have you any further specific
ideas on how overcharging could be dealt with?
Mr Morgan: Greater use of the
CPS lawyers in the police station and a mandatory use of those
CPS lawyers in the police station by charging officers. The figure
has been shown that of those cases that have been referred to
a CPS lawyer in a police station, some 30% result in no charge
at all, whereas the officer in charge of the case would previously
have charged.
Q144 Mr Soley: You also suggest that
many of the additional orders are not caused by the abolition
of means testing but are due to a change in procedure, whereby,
instead of adding new charges to an existing legal aid order,
a new order is now issued. What effect is this likely to have
had on the number of orders granted?
Mr Morgan: Quite dramatic. It
follows on from the point I was just making. If a higher charge
is brought at the outset, a representation order is granted to
represent a client with that charge and weeks or even months later
the charge is changed. Previously we would have written to the
courts, the initial order would have been amended, there would
have been one order for that one case. Now, a second new order
under a different reference is granted and it looks as though
two orders have been granted, whereas only one case has been dealt
with.
Q145 Mr Soley: Just to be clear about
this, it would still be relating to the original case but a new
order has had to be granted because of the different charge in
that case.
Mr Morgan: That is right and the
new reference procedure.
Q146 Dr Whitehead: You have said in your
evidence that you are "completely opposed to having to calculate
and collect contributions in relation to the means test".
What about the interests of justice test? Are you also opposed
to the suggestion in the draft proposals that solicitors should
apply that test?
Mr Morgan: No, we do not object
to it at all. There are mixed views. There are arguments either
way. At the moment, the interests of justice test (what used to
be called the Widgery criteria) applied by the magistrates' court
has worked fairly well. There are criticisms of inconsistency
and of some courts being too favourable towards defendants. Dealing
with the latter for the moment, if I may, there are examples of
representation orders being granted for matters such as cycling
on a pavement and that sort of thing. The fact that we know of
those suggests that they are rare events, and I have yet to see
any evidence of how common they are, to be frank. There is constant
referral to evidence of unfavourable grants of representation
orders, but, as I say, I have yet to see the evidence of it. Were
the matter to pass to the Legal Services Commission, there are
initial concerns with that. The magistrates' court generally uses
clerks to deal with the interests of justice test. They are clerks
who have either been in private practice in the past at some time
or who have day to day experience of seeing defendants and representatives
before them, and they have the experience of understanding a defendant
and a defendant's case—and the prosecution case, for that
matter. The Legal Services Commission would use, to be blunt,
an administrator who has probably, as has been mentioned only
10 or 15 minutes ago, never seen the inside of a court room or
a police station or a solicitor's office or has never been confronted
with a client before, so there are reservations there. Obviously
the intention is to delegate it as a devolved power to solicitors.
Provided there are appropriate safeguards in place, I think that
could work. Earlier on you referred to the Legal Services Commission
evidence on that. I must confess I was not aware of the Legal
Services Commission proposals until I read the evidence they had
already given to this court. I would like to see some more work
done on that. The proposals could work, as I say. They are suggesting,
as was mentioned just now, the indictable only offences would
be almost automatic. The more serious either-way offences could
be automatic. I would like to know what their definition of the
more serious offences are, because it is the less serious offences,
that they would deal with, that would cause solicitors the problem,
the problem of second-guessing, as has already been referred to.
Could I give you examples of that. I suspect they might consider
that a less serious either-way offence would perhaps be a minor
shoplifting matter: an offence of dishonesty which could cause
loss of job, with all the inherent costs to the country that that
involves and disaster to the family. Domestic violence matters
sometimes result in just a binding over. They may regard those
as less serious offences but the domestic violence order that
results perhaps in a binding over rears its head in contact proceedings
or care proceedings and the impact can be immense. There are far
greater factors to be considered than just blunt objective tests.
I would like to see some more information from the Legal Services
Commission on how they define less serious and more serious offences.
Q147 Dr Whitehead: The draft Criminal
Defence Bill consultation paper, as you have alluded, states that
there is some evidence that courts have been too favourable to
defendants and also inconsistency in applying the interests of
justice test referred to in paragraph 5, schedule 3 of the Access
to Justice Act 1999. You have mentioned that you are not sure
whether there is serious evidence that that is the case. Is it
your view that there is more than anecdotal evidence or that that
case is essentially anecdotal?
Mr Morgan: I have some personal
experiences where I have been granted a representation order where
I was surprised. No, it is only anecdotal. I am trying to look
at the reasons why some courts may be more favourable towards
the grant of representation orders than others. My guess would
be it is in the busier courts, where the clerks take a pragmatic
view that to maintain the throughput of cases in that court it
is far better to have a defendant represented than not, because
an unrepresented defendant causes mayhem sometimes, certainly
delay and often miscarriage because the defendant is relying upon
the clerk to look after their rights and that places the clerk
in a difficult position.
Q148 Dr Whitehead: So it is simply to
keep the system going.
Mr Morgan: To put it bluntly,
yes. That is the view taken by many clerks, I think.
Q149 Dr Whitehead: If one looks at statistical
evidence—and I realise that this is not the moment to go
into that—on the one hand there has been a steep increase
in the number of legal aid applications, a 40% increase between
2001 and 2004, but the number of cases refused on the interests
of justice, although they went up, as a percentage is almost consistent.
You could put two interpretations on that. You could either say
that the courts have always been over-willing to grant these applications,
perhaps for the reasons we have mentioned, or you could say that
the courts are taking a fairly consistent view, unlike the suggestion
in the draft Criminal Defence Service Bill that actually they
are doing a relatively good job in keeping the numbers relatively
consistent. Which way might you go?
Mr Morgan: I think it is the latter.
I think generally they are doing a good job. If you talk about
the more favourable grants, there are some less favourable grants.
Some courts take a very stiff view, and solicitors know which
they are, and they know they will have their work cut out to obtain
a representation order and very often find themselves having to
attend following a refusal to make oral applications and that
increases the costs essentially for everybody. There are examples
of certain courts that despite the six or seven points of the
Widgery criteria (as it used to be known) rely upon one: is custody
likely or not? If custody is not likely, they do not grant it,
ignoring the rest of the criteria. Some courts are overly harsh
in the granting of representation orders. So, to answer you question:
yes, I think they do a good job.
Q150 Dr Whitehead: In terms of putting
that into the hands of solicitors, would not the same argument,
in terms of keeping show on the road, also apply?
Mr Morgan: There are several concerns
there. First, the fact that it has remained consistent suggests
the solicitors are pretty good at gauging when legal aid will
be granted and when it will not be granted. They know when the
interests of justice test will be made out and when it will not.
Changes to some of the provisions have meant that certain parts
of the criminal procedure now are not out of scope: it has meant
that solicitors have no choice other than to submit a representation
order on behalf of their client in the hope that a representation
order is granted, because if it is not there is no funding at
all and they have done the work for nothing.
Q151 Dr Whitehead: You have picked the
highest tax rate band as a cut off point for legal aid. That is
a very specific point, one might argue, in terms of the likely
case that people, as it were, paying the highest tax rate band
would not be inconvenienced in terms of paying. What effect do
you think the choice of that band would have on the anticipation
the Department makes about its savings?
Mr Morgan: Firstly, it might reduce
any human rights applications, as were mentioned earlier on, for
this reason: The figure of £25,000 was mentioned and it was
also mentioned that that takes no account of the liabilities of
the defendant. The fact that somebody is a higher income tax payer
suggests of itself that they are reasonably well off—certainly
they are not in the poverty strand—so it is as good a figure
as any, to be frank. It does take account of some allowances that
have been made for the liabilities, shall we say, of the defendant
and perhaps is a fairer mark than just an arbitrary figure. I
am not sure if that answers your question.
Q152 Dr Whitehead: It certainly makes
the case in terms of, as it were, a reasoned figure rather than
an arbitrary figure. I am trying to work out in my mind the way
that would affect proposed departmental savings. I imagine it
would potentially decrease those departmental savings.
Mr Morgan: I would like to see
the figures. I do not know. Certainly it would take out of scope,
or it would take out of uncontributed scope, I suppose, quite
a number of defendants, but again I think I would have to see
the evidence of it. From a human rights' point of view, I suppose,
it seems a fairer figure because it does take some account. Personally,
I would not like to have any figure; let's have some sort of sliding
scale in some shape or form, but, if there is a figure that takes
people out of scope, that is probably as good as any. Without
doing some research, I cannot say a figure.
Q153 Mr Soley: Both you and the preceding
witnesses take the view that the real cost drivers are external
to what you can do about it.
Mr Morgan: Yes.
Q154 Mr Soley: I am not clear about whether
you think the increased imprint of the law is inevitably going
to drive up costs and we have to learn to live with it, or whether
you are saying a lot of these things are unnecessary, should not
be done, and that way you could keep your costs down.
Mr Morgan: If any initiative is
going to increase the numbers of defendants that appear before
the courts, where they meet the interests of justice test, it
will inevitably increase the requirement for representation and
the requirement for representation orders, hence the costs will
inevitably go up. But, as has previously been mentioned, as you
rightly say, that initiative should bear in mind the cost consequences
to the Legal Aid Fund.
Q155 Mr Soley: You think, generally speaking,
that it is necessarily desirable.
Mr Morgan: No, it is desirable
to put another 20 million people, or however many the figure may
be—perhaps it is 200,000, I do not know—before the
courts and it is right they should be before the courts, then
it is right they should be before the courts, but it is also right
they should be represented if they meet the interests of justice
test.
Q156 Peter Bottomley: Your written response
to our inquiry is very useful.
Mr Morgan: Thank you.
Q157 Peter Bottomley: You have suggested
that there are eight questions which the Department or the Government
ought to answer to try to give some justification to their proposed
approach. Leave that on one side, what do you think ought to happen?
Leave aside the Government's proposals, would you do nothing or
make suggestions of change, either personally or on behalf of
your organisation?
Mr Morgan: I think change has
to happen. There are various options and various permutations.
They are being looked at in the civil field as well as the criminal
field, with completely different methods of funding. GP-type contracts
are being discussed and so on; the movement away from payment
on an hourly basis is a consideration; the movement away from
an item by item basis and being subject to audit and so on, of
whether each of those items were appropriate. Movement away from
that must be desirable. I think changes in the system can bring
about far better efficiencies and I think those efficiencies should
be rewarded. I can give you a whole host of examples if you like.
I will give you one simple one, perhaps, of crown court proceedings
at the moment. If I were in court this morning and I have a client
who is committed to the crown court, as a solicitor-advocate I
could walk into the crown court tomorrow and conduct the PDH hearing,
the first hearing at the crown court. If it is a guilty plea,
I could then conduct the sentencing exercise. But to go for that
PDH hearing, I would receive the grand sum of either £45
or £91 (whichever it is) and I could be in court all day
fro that princely sum of £45. Instead, what can I do? I can
instruct counsel. I will spend two or three hours conducting a
good brief to counsel, I hope; then there will be a conference
between me and counsel or the client and counsel or both; there
will be a conference at court and I will attend the court with
counsel. The costs will be ten-fold. To incentivise me to go and
do the hearing in the first place must be an efficient saving.
To treble or quadruple that fee would create a real saving to
the firm. To incentivise solicitor-advocates to look at every
plea and directions hearing would be a good way. I could give
you lots more examples if you like.
Q158 Peter Bottomley: Perhaps you would
give us a note with some of them. Does the Department consult
with your group on how to get more effective economic justice?
Mr Morgan: It does, but it does
not just give us a blank piece of paper, as you might suggest,
and say, "What would you do?"—because we would
like to complete that blank piece of paper. Yes, they do, is the
answer to your question. We are involved in the process, we are
discussing it both with the Department and with LSC. We work together
and hopefully in some cases are ideas are taken on board and our
views are taken on board.
Q159 Mr Soley: Thank you very much.
Mr Morgan: Would it be too cheeky
if I made one point that I hope will take no more than 30 seconds?
There was comment made about very high cost cases earlier on.
I totally endorse the views that were taken: Saving one high cost
case would save far more than any of these proposals. But I think
one needs to look at the way in which those cases are prosecuted.
The various prosecuting authorities—and this is not just
the CPS—look for the multi-handed conspiracies, the 10/15
handed conspiracies. They want the big hit, the big win. Their
success rate is not good. It involves very, very lengthy investigations,
masses of documentation, late disclosure, increased costs. If
that was looked at, that would create tens, if not hundreds of
millions of pounds of savings on what becomes part of the Legal
Aid Fund.
Q160 Mr Soley: That does echo what was
said to us before. Do you think it is a general view of the legal
profession?
Mr Morgan: Absolutely. Surely
those who are on the serious fraud panel would know that. Thank
you very much.
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